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The Obvious Constitutionality of Health Care Reform1 ANDREW KOPPELMAN Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform1 The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore.2 Challenges to President Obama’s health care law3 have started to work their way toward the Court and have been sustained by two Republican-appointed district judges.4 1. A version of this Essay was presented at “Healthcare Reform: The Law and Its Implications,” a seminar of the American Health Lawyers Association, held in Chicago on December 6, 2010. This Essay consolidates and adds to arguments presented in an earlier series of blog posts. Andrew Koppelman, Can’t Think of Another One, BALKINIZATION (Dec. 14, 2010, 11:17 AM), http://balkin.blogspot.com/2010/12/cant-think-of-another-one.html; Andrew Koppelman, Health Care Reform: The Broccoli Objection, BALKINIZATION (Jan. 19, 2011, 4:48 PM), http://balkin.blogspot.com/2011/01/ health-care-reform-broccoli-objection.html; Andrew Koppelman, Non Sequiturs in the Florida Health Care Decision, BALKINIZATION (Feb. 2, 2011, 2:42 PM), http://balkin.blogspot.com/2011/02/non-sequiturs-in-florida-health-care.html; Andrew Koppelman, The Virginia Court’s Bizarre Health Law Decision, BALKINIZATION (Dec. 13, 2010, 5:01 PM), http://balkin.blogspot.com/2010/12/virginia-courts-bizarre-health-law.html. 2. 531 U.S. 98 (2000). For defenses of the modest proposition that the Supreme Court is not constitutionally authorized to appoint the President, see, for example, Laurence H. Tribe, eroG v. hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 HARV. L. REV. 170 (2001). See also Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 YALE L.J. 1407 (2001). 3. Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111- 152, 124 Stat. 1029 (to be codified primarily in scattered sections of 42 U.S.C.). 4. Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs. (State Attorneys General II), No. 3:10-cv-91, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011); Virginia ex rel. Cuccinelli v. Sebelius (Cuccinelli II), 728 F. Supp. 2d 768 (E.D. Va. 2010). Three other district judges—in 1 the yale law journal online 121:1 2011 The constitutional objections are silly. However, because constitutional law is abstract and technical and because almost no one reads Supreme Court opinions, the conservative majority on the Court may feel emboldened to adopt these silly objections in order to crush the most important progressive legislation in decades. One lesson of Bush v. Gore, which did no harm at all to the Court’s prestige in the eyes of the public,5 is that if there are any limits to the Justices’ power, those limits are political: absent a likelihood of public outrage, they can do anything they want. So the fate of health care reform may depend on the constitutional issues being understood at least well enough for shame to have some effect on the Court. The Patient Protection and Affordable Care Act (PPACA) includes a so- called “individual mandate,” which is actually a tax that must be paid by individuals who fail to meet a minimum level of health insurance coverage.6 This mandate is the focus of challenges to the law. Without the mandate, the law’s protection of people with preexisting conditions would mean that healthy people could wait until they get sick to buy insurance. Because insurance pools rely on cross-subsidization of sick people by healthy participants, this would bankrupt the entire health insurance system. The individual mandate charges those people for at least some of the costs they impose on their fellow citizens. Massachusetts, acting a few years before the federal law, combined its guarantee of coverage with a mandate, but seven other states tried to protect people with preexisting conditions without mandating coverage for everyone. The results in those states ranged from huge premium increases to the complete collapse of the market.7 Two federal district judges have declared this provision unconstitutional.8 The novel approach to constitutional law that they propose would misread the the District of Columbia, the Western District of Virginia, and the Eastern District of Virginia—summarily threw out similar challenges. Mead v. Holder, No. 10-950, 2011 WL 611139 (D.D.C. Feb. 22, 2011); Liberty Univ. v. Geithner, No. 6:10-cv-00014, 2010 WL 4860299 (W.D. Va. Nov. 30, 2010); Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010). 5. See Herbert M. Kritzer, The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court, 85 JUDICATURE 32 (2001) (noting that the decline among Democrats was offset by improvement among Republicans). 6. PPACA § 1501(b), 124 Stat. at 244 (to be codified at 26 U.S.C. § 5000A). 7. See Brief for March of Dimes Foundation et al. as Amici Curiae in Support of Motion to Dismiss at 4-8, Cuccinelli II, 728 F. Supp. 2d 768 (E.D. Va. 2010) (No. 3:10-cv-00188), available at http://www.nsclc.org/areas/federal-rights/ amicus-brief-in-support-of-health-reform-1. 8. State Attorneys General II, 2011 WL 285683, at *33; Cuccinelli II, 728 F. Supp. 2d at 788. 2 bad news for mail robbers Constitution, betray the intentions of the Framers, and cripple the nation’s ability to address one of its most pressing problems. The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that. Part I of this Essay presents a brief explanation of why Congress has the power to enact this law. Part II rebuts the constitutional objections. Part III offers what the law’s opponents have demanded: an account of the limits of congressional power. Part IV explains why federal action was necessary in this case. Part V critiques the radical libertarianism that underlies the constitutional case against the law, a case that is encapsulated in the notorious “Broccoli Objection.” Part VI concludes. i. the obvious constitutionality The mandate is within Congress’s power under Article I, Section 8 of the Constitution to “regulate Commerce . among the several states.”9 Under settled present law, some of it nearly two hundred years old, Congress may regulate activity that has a substantial effect on interstate commerce.10 As recently as 2005, the Supreme Court held that Congress may regulate local noneconomic behavior when such regulation is an “‘essential part[] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.’”11 The Court thus upheld a federal ban on growing marijuana for personal consumption.12 The power to regulate insurance markets is part of the commerce power. The Supreme Court declared in 1944: “Perhaps no modern commercial enterprise directly affects so many persons in all walks of life as does the insurance business. Insurance touches the home, the family, and the occupation or the business of almost every person in the United States.”13 So 9. U.S. CONST. art. I, § 8, cl. 3. 10. See, e.g., Wickard v. Filburn, 317 U.S. 111, 118-29 (1942); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193-98 (1824). 11. Gonzales v. Raich, 545 U.S. 1, 24 (2005) (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)). The Court does not mention the activity/inactivity distinction, pressed vigorously by opponents of the mandate and considered below. The question is not whether the trigger for regulation is activity, but rather whether the regulation itself is part of a regulation of economic activity. Id. at 17. 12. Id. at 32-33. 13. United States v. Se. Underwriters Ass’n, 322 U.S. 533, 540 (1944). 3 the yale law journal online 121:1 2011 Congress has the power to impose regulations to make sure that huge numbers of Americans do not go uninsured. The problem of insuring those with preexisting conditions could be addressed with a single-payer insurance system of the kind that exists in Canada, France, England, the Netherlands, and Australia. In such systems, everyone gets insurance provided by the government, funded by general taxation.14 The American government already forces you to buy single-payer insurance against poverty in your old age: Social Security. A similar single- payer system of medical care makes a great deal of sense, but too many powerful interests were arrayed against it for it to have any hope of enactment. Political obstacles aside, Congress is entitled to decide that a government monopoly of health provision would be inefficient and that insurance is best provided by the private sector. In that case, the only way to guarantee health insurance for everyone is to require the healthy to purchase private insurance. The remedy tightly fits the problem. Congress has discretion to decide the best way to exercise its authority. The list of congressional powers in Article I ends with an authorization to “make all Laws which shall be necessary and proper” to carry out its responsibilities.15 The interpretation of this provision was settled in 1819 by Chief Justice John Marshall in McCulloch v. Maryland.16 The central question in McCulloch was whether Congress had the power to charter the Bank of the United States, the precursor of today’s Federal Reserve Bank.
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